(See S. C. Reporter's ed. 343-351.) Testimony in criminal action-decoy letter.

as petroleum or naphtha; viscous, as the semifluid asphaltum; elastic, as elaeterite, found in Utah, and elsewhere; solid, as some forms of asphaltum, bituminous or anthracite coal; that the common compositions of crude bitumen are naturally classified as above stated. The deposits of bitumen occur in various portions of the earth's crust; they differ naturally in appearance, in consistency, in various physical and chemical properties; but they are everywhere found to consist essentially of hydrocarbons, and they are correctly designated as crude bitumens. That natural gas should be designated as a crude bitumen was the opinion of some of the witnesses.


Testimony of the persons named by the accused as his enemies, that they have no ill will against him, is not collateral to the main issue, or a contradiction of what the prosecution has brought out, where the accused on his direct examination said that enemies had placed in his pocket stolen money that was found there, and their names were brought out on cross-examination.

We think the evidence in this case shows that, within the language of paragraph 651 of the act of Congress, interpreting that language in accordance with the rule above mentioned, natural gas would fairly come under the head of a crude mineral, if there were no more limited classification in the act; but that the classification as crude bitumen is more limited, and we are of opinion that, upon the evidence, natural gas is properly thus described. If it be within the more specific classification, it would be controlled thereby. It is not important in this case to conclusively decide which classification covers it, because both are on the free list. As the gas is described in one or both of the paragraphs, it cannot come under section 4 of the act, which provides for the levy, collection, and payment on the importation of all raw or unmanufactured articles, not enumerated or provided for in the act, a duty of ten per centum ad valorem.

The judgment of the Circuit Court of the United States for the Northern District of New York was right, and should be affirmed.

HENRY W. SCOTT, Plff. in Err.,




The fact that a letter stolen from the mails was a decoy addressed to a fictitious person is not a defense to an indictment under U. S. Rev. Stat. § 5467, when the letter had been delivered into the jurisdiction of the postoffice department by dropping it into a letter box.

[No. 80.]

uary 3, 1899.

Evidence on the part of the government was given by witnesses who were connected with the Government Geological Survey, and their evidence would tend to show that the word "minerals" in the mineralogical sense of the word almost invariably refers to solids; that in the mineralogical definition gases would not be included, but that there was a wider definition, which, according to some authorities, includes all the constituents Submitted December 5, 1898. Decided Janof the earth's crust, and that would include gases. It was also stated that if a scientific man wants to be precise he confines his use of the term "mineral" to a certain homogeneous substance, a chemical entity, having a definite composition, just as the mineralogist does. But nevertheless minerals are both solids and liquid, according to most definitions, and that some authorities include gases among minerals and others exclude them. [843] *One witness for the government said if you exclude from the mineral kingdom the gases included in the atmosphere, you must set up some fourth class of substances; the division being, generally, the vegetable kingdom, the animal kingdom, and the mineral kingdom; but no such fourth division is ordinarily designated, and the constituents of the atmosphere are not vegetable and they are not animal, and ordinarily they are included in the mineral kingdom.

ERROR to the Circuit Court of the of New York to review a judgment of that court convicting Henry W. Scott of stealing a letter and its contents from the mail, under U. S. Rev. Stat. § 5467. Affirmed.

The facts are stated in the opinion.
Mr. T. C. Campbell for plaintiff in er-


Mr. James E. Boyd, Assistant Attorney General, for defendant in error.

*Mr. Justice Peckham delivered the opin-[344] ion of the court:

Henry W. Scott, the plaintiff in error, was indicted under section 5467, Revised Statutes, for stealing a letter and its contents from the mail, and the indictment alleged that he unlawfully and wilfully secreted and embezzled a certain letter intended to be conveyed by mail and directed to Miss Mary Campbell, Cottonwood, Yavapai county, Arizona, he being a letter carrier in the city of New York and the letter having been intrusted to him and having come into his possession in his capacity as such carrier. The letter contained $3.50 in two silver certificates of the United States, each of the denomination of one dollar, and a United States Treasury note of the denomination of one dollar, and a fifty-cent piece of the silver coinage of the United States. The evidence showed that the letter was what is termed a decoy letter; that the money was placed therein by one of the inspectors of the Postoffice Department; that it was sealed, stamped, and addressed as above mentioned, and deposited about 2:30 o'clock P. M. in one of the street letter boxes in the city of New York, in the district from which the defendant collected such letters. Within a few moments after it was deposited in the letter box by the inspector, he saw the defendant come to the box, unlock it, take out its con-[345] tents, put them in his bag and continue on

his route. The carrier returned to the branch postoffice, station E, where he was employed, a little after three o'clock, turned the contents of his bag upon the proper table for distribution, and hung the bag and also his coat on a peg, and left the room and was gone about half an hour. One of the clerks of the department had been told before the defendant's arrival with his letter bag to look out for a letter addressed as above described, and withdraw it from the mail, and in obedience to such instructions and during the defendant's absence he looked through the letters thus taken from his bag, and the letter was not to be found. Upon the defendant's return to the distributing room, he took his coat and bag and started on his route for another collection of letters, and while on the street he was met by the officers of the government about five minutes after four o'clock P. M., and was then arrested and brought to the station. He was charged with having the letter, and was asked to show what he had in his pockets. The letter was not found, but the defendant took from his right-hand trousers pocket, among other things, the three bills which had been placed in the letter. The fifty-cent piece was found loose among other coins in another pocket. The officers identified the bills by marks which had been placed on them, and also by reason of the numbers of the bills, a memorandum of which had been taken. The coin had been marked and was identified by the officers.

In relation to the letter, it appears that it was prepared by the inspector of the department, who addressed the same to Miss Mary Campbell. The inspector wrote the body of the original letter. He did not know Mary Campbell, and never saw her; it was addressed to her at Cottonwood, Arizona, at which place there is a postoffice, but there was no one of the name of Miss Mary Campbell residing at Cottonwood, Arizona, to his knowledge. The address on the letter was to a fictitious person; the money placed in the letter was the money of Mr. Morris, one of the inspectors.

Upon the trial the defendant was sworn in his own behalf, and upon his direct exam[346]ination testified that when he was arrested and the money found upon him, he said to the inspectors, "Somebody has done me a dirty trick;" to which one of the inspectors replied. "Do you think I am concerned in that?" The defendant says that he answered him, "I did not think or did not know whether he was; but if he was not, some enemy of mine in that office was." He denied on the witness stand, that he abstracted, or took from the collection table, or at all, any letter such as is described in the indictment, or any money belonging to any other person in the world.

asked him: "Have you any enemies among the employees at that station?" and the defendant answered that he had one by the name of Augustus Weisner and another named John D. Silsbee, his former superintendent; that he was an enemy of his and so was Weisner, and that those two were all that he regarded as enemies in that office, both being employed in the same branch office as the defendant, and he said that for a month before he was arrested he was not on speaking terms with Weisner.

Upon cross-examination the district attorney endeavored to obtain a fuller statement from the defendant as to what he meant when he said on his direct examination that somebody had done him a dirty trick, and that some enemy of his in the office was concerned in it, and to that end the district attorney

The court asked the defendant: "What is the trick that you mean to suggest to the jury that was played upon you?" and the defendant answered: "The only solution that I can give of it is that that two dollars had been abstracted from my pocket and these marked three dollars put in the place of it. Three dollars and a half placed there; fifty cents in with this change." The witness had just previously stated that he left two onedollar bills belonging to himself in his coat pocket at the time he hung his coat upon the peg in the sorting room and left it there to go down stairs, and from which room he was absent about twenty-five minutes.

When the defendant rested the government called as witnesses John D. Silsbee and Augustus Weisner, the two men named by the defendant as his enemies, both of whom testified under the objection and exception of[347] defendant's counsel, that they had no ill-will whatever towards the defendant, and that they had never had any quarrels with him, and Weisner said, on the contrary, that he had liked the man. The counsel for the defendant objected to this testimony on the ground that the evidence of defendant upon this subject was collateral, brought out by the government on his cross-examination, and that the government was bound by his answers.

After the evidence was all in the counsel for the defendant requested the court to charge, "that a letter intended to be conveyed by mail, under the statute, must be addressed to an existing person, at an existing place, or to a real and genuine address." The court refused so to charge, and the defendant excepted.

The defendant's counsel further requested the court to charge, "that a letter with an impossible address, which can never be delivered and which the sender, acting conjointly with postoffice officials, determined should be intercepted in the mail, is not such a letter as was, in the meaning of the statute, 'intended to be conveyed by mail.'" This was also refused, and an exception to such refusal taken by defendant's counsel.

The jury having convicted the defendant, he has brought the case here by writ of er


Regarding the objections taken by the defendant to the evidence of Silsbee and Weisner, above alluded to, we think they were properly overruled. The evidence objected to was not irrelevant, and the government was not bound by the answers of the defendant as to Silsbee and Weisner being his en

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emies. When arrested the defendant had up- I mailed them and by whom they were to be on his person the three bills and the fifty- intercepted and to be withdrawn from the cent piece which had been marked by the mails before they reached the persons to postoffice inspectors and placed in the letter whom they were addressed, was no defense, and deposited in the letter box, addressed as and that such letters were in reality instated. Appreciating his position, the de- tended to be conveyed by mail within the fendant endeavored then and there to ac- meaning of the statute on that subject. In count for his possession of the money, and he that case the court, speaking through Mr. accounted for it by saying that someone, some Justice Shiras, said: enemy of his at the office, had done him a dirty trick, by which, as he testified, he meant to say that someone had deposited that money [348]in his coat pocket while his coat hung up in the sorting room, and while he was absent from that room. This evidence of defendant was an attempt to raise a suspicion, at least, that some enemy of his in the building had placed this money in his coat, and thereby to relieve himself from the suspicion of having stolen it and to show his own innocence. It was an attempt at an explanation showing an honest possession of the money. It was therefore admissible, upon cross-examination, for the purpose of showing the improbability of the explanation, to obtain from the witness all the circumstances which might throw light upon the subject. For that purpose he was asked if he had any enemies in the department, and he said that he had, naming two employees at this particular station, one the superintendent and the other a fellow letter carrier.

"Error was likewise assigned to the refusal of the court to charge that there was a fatal variance between the indictment and proof in respect to the description of the letters, for the stealing or embezzling of which the defendant was indicted.

"In the indictment it was averred that the letters in question had come into the defendant's possession as a railway postal clerk, to be conveyed by mail, and to be delivered to the persons addressed. It was disclosed by the evidence that the letters and money thus mailed belonged to the inspectors who mailed them, and were to be intercepted and withdrawn from the mails by them before they reached the persons to whom they were addressed.

"There is no merit in this assignment. The letters put in evidence corresponded, in address and contents, to the letters described in the indictment, and it made no difference, with respect to the duty of the carrier, whether the letters were genuine or decoys with a fictitious address. Substantially this question was ruled in the case of Goode v. United States, above cited."

In the last-cited case, which is reported in 159 U. S. 663 [40: 297], the court said, at page 671 [40: 301], speaking through Mr. Justice Brown:

"It makes no difference, with respect to the duty of the carrier, whether the letter be genuine or a decoy, with a fictitious address.

If this were true, it might have been argued to the jury that the explanation of defendant was strengthened, and the inference that one or both of these enemies had done this trick might for that reason have been maintained with more plausibility. To show that no such inference could properly be drawn, the government proved that the men the defendant named as enemies were not such in fact. The evidence was not collateral to the main issue of guilt or innocence, nor Coming into his possession, as such carrier it was the subject first drawn out by the gov-*is his duty to treat it for what it appears to[350] ernment. The district attorney on the cross-be on its face-a genuine communication; to examination simply obtained the names of make an effort to deliver it, or, if the address those upon whom the defendant attempted be not upon his route, to hand it to the propto cast a suspicion by his statement in er carrier or put it into the list box. Cerchief. He could not escape from the possi- tainly he has no more right to appropriate bility of being contradicted, by the failure it to himself than he would have if it were to name the enemies on his direct examina- a genuine letter. For the purposes of these tion. That examination suggested an ex- sections a letter is a writing or document, planation which, if believed, showed an in- which bears the outward semblance of a gennocent possession, and however improbable uine communication, and comes into the posit was, the government had the right to pur- session of the employee in the regular course sue the subject and to show that it was un- of his official business. His duties in refounded. The objection to the evidence spect to it are not relaxed by the fact or by cannot therefore be sustained. his knowledge that it is not what it purports to be-in other words, it is not for him to judge of its genuineness."

We think the court below was also right in its refusal to charge as above requested regarding the decoy letter. The correctness In this case the letter was addressed alof the ruling has in substance been already though to a fictitious personage, yet to a upheld in this court. postoffice within the territory of Arizona. It [349] *In Montgomery v. United States, 162 U. was properly stamped, and it was placed S. 410 [40: 1020], we not only decided that, and came within the jurisdiction and auupon an indictment against a letter carrier, thority of the Postoflice Department by be charged with secreting, etc., a letter con- ing dropped into a United States street lettaining money in United States currency, ter box, in the city of New York. The duty the fact that the letter was a decoy was no of the defendant was, as above stated predefense, but it was also held that the further cisely the same in regard to that as to any fact that the decoy letters (mentioned in the and all other letters that came into his poscase) and the moneys inclosed therein, al-session from these various letter boxes. The though belonging to the inspectors who intention to convey by mail is sufficiently

proved in such a case as this, by evidence of the delivery of a letter into the jurisdiction of the Postoffice Department by dropping it in a letter box as described herein.

Section 5468, Revised Statutes, provides that the fact that any letter has been deposited in any postoffice, or branch postoffice, or in any authorized depository for mail matter, etc., shall be evidence that it was intended to be conveyed by mail, within the meaning of the two preceding sections. This prima facie evidence is not contradicted or modified by proof, as in this case, that the letter was a decoy and addressed to a fictitious person. It was deposited in a proper letter box, and it was intended that it should be taken and conveyed by defendant, a mail carrier, and his duty as such carrier was to convey it to the station postoffice, and while so being carried it was being conveyed by mail, and was under the protection of the Postoffice Department, and its safety provided for by the statute under consideration. [351]An intention to have the letter thus conveyed by the carrier is, within the statute, an intention to have it conveyed by mail. The difficulties of detecting this kind of crime are very great, and the statute ought not to be so construed as to substantially prevent a conviction under it. A decoy letter is not subject to the criticism frequently properly made in regard to other measures sometimes resorted to, that it is placing temptation before a man and endeavoring to make him commit a crime. There is no temptation by a decoy letter. It is the same as all other letters to outward appearance, and the duty of the carrier who takes it is the same.

The fact that it is to a fictitious person is in all probability entirely unknown to the carrier, and even if known is immaterial. Indeed, if suspected by the carrier, the suspicion would cause him to exercise particular care to insure its safety, under the belief that it was a decoy.

The other objections taken upon the trial we have examined and are of opinion they are without merit, and the judgment is therefore affirmed.


(See S. C. Reporter's ed. 351-361.)

Contract void for usury-when there need
not be an offer to repay-public poucy of a
state obligatory on Federal courts-right
given by state statute.

money loaned, under Minn. Gen. Stat. 1894,
§ 2217, providing that such contract shall be
canceled and given up.

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district of Minnesota, where the Union Trust
Company of Philadelphia was made a code-
fendant, and the case was so proceeded in
that, on October 22, 1895, a final decree was
entered, granting the prayers of the com-
plainants, declaring the said mortgage and
notes to be void, and enjoining the defend-

MISSOURI, KANSAS, & TEXAS TRUST ants from ever taking any action or proceed-
COMPANY, Petitioner,
ing for their enforcement. 71 Fed. Rep. 350.
From this decree an appeal was taken to
THEODORE M. KRUMSEIG and Louise the circuit court of appeals for the eighth
circuit, where, on November 5, 1896, the de-
cree of the circuit court was affirmed. On
March 20, 1897, on petition of the Missouri,
Kansas, & Texas Trust Company, a writ of
certiorari was awarded whereby the record
and proceedings in said cause were brought
for review into this court.

Argued December 2, 1898. Decided January
3, 1899.


Eighth Circuit to review a decree of that
court in an action brought by Theodore M.
Krumseig et al. against the Missouri, Kan-
sas, & Texas Trust Company, affirming the
decree of the Circuit Court of the United
States for the District of Minnesota declar-
ing a certain mortgage and notes to be void
and enjoining their enforcement. Affirmed.
See same case below, 71 Fed. Rep. 350.

Statement by Mr. Justice Shiras: *In May, 1894, Theodore M. Krumseig and[352] Louise Krumseig filed in the district court of the eleventh judicial district of Minnesota a bill of complaint against the Missouri, Kansas, & Texas Trust Company, a corporation of the state of Missouri, praying that, for reasons alleged in the bill, a certain mortgage made by complainants on the 5th day of September, 1890, and delivered to the defendant, and by it recorded, and certain notes therein mentioned, might be canceled, and the defendant be permanently enjoined from The defendant thereupenforcing the same. on, by due proceedings removed the cause to the circuit court of the United States for the

Mr. William C. White for petitioner.
Mr. J. B. Richards for respondents.

*Mr. Justice Shiras delivered the opinion[352] of the court:

The bill of complaint alleged that on July 27, 1890, Theodore M. Krumseig, one of the complainants, made a written application to[353] defendant, a corporation of the state of Mis172 U. S.

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souri, for a loan of $2,000, to be secured upon | operations, or in the manufacture, handling, real estate in the city of Duluth, Minnesota, or transportation of explosives, or entered and among the conditions in the said appli- into the service of any railroad train, or on cation was the following: a steam or sailing vessel for two years."

"In consideration of the above premises, I agree to execute and deliver to the said company ten promissory notes, each of the sum of $360, payable in monthly instalments of $30, commencing at date of signing contract. The said notes aver principal sum loaned, interest and cost of guaranty to cancel debt in case of death, and shall be secured by good and sufficient deed of trus or mortgage executed by myself and wife on said ground and improvements. The contract hereafter to be entered into, if my application shall be accepted and contract entered into in writing between myself and said company, shall provide that the mortgage or deed of trust given to secure the above notes shall contain a clause guaranteeing in case of my death before payment of any unpaid instalments, a release of unpaid portion of debt, if I shall have promptly paid previous instalments and kept other conditions. As part of foregoing condition I agree, before acceptance of this application and the execution of said contract, to pass such medical examination as may be required by said company, and to pay said company the usual $3 fee therefor, and to pay all fees for recording deed of trust or mortgage."

The bill further alleged that thereupon Krumseig passed the medical examination required, paia the fee demanded, and complainants then executed ten certain promissory notes, each for the sum of $360, dated September 5, 1890, payable in monthly instalments of $30, with interest at ten per cent after due, forty-one of which instalments, amounting to $1,230, have been paid; on the same day, in order to secure these notes, they executed and delivered to the defendant a mortgage on the premises, with the usual covenants of warranty and defeasance, reciting the indebtedness of $3,600, in manner and form aforesaid, and containing the following clause:

"And it is further understood and agreed by and between the said parties of the first part, their executors, administrators, or as signs, and the said party of the second part, [354]the Missouri. *Kansas, & Texas Trust Company, that in case the said Theodore M. Krumseig, one of the parties of the first part, should die after the execution and delivery of the said notes and this mortgage, and within ten years thereafter, each and every of the said notes remaining unpaid at the said date shall be surrendered to the executors or administrators of the said Theodore M. Krumseig, one of the parties of the first part, and this mortgage shall be canceled and satisfied; provided, however, that said parties of the first part shall have promptly paid each monthly instalment that shall have become due prior to his death according to the terms of the notes hereinbefore mentioned, and that he has not committed suicide within two years, and has not without written consent of the party of the second part visited the torrid zone, or personally engaged in the business of blasting, mining, or submarine

The bill further alleged that the sole consideration for the notes and mortgage was: 1st, the sum of $1,970, together with the interest thereon from date until maturity of the instalment notes; and, 2d, the clause in the mortgage last referred to, which latter was in fact an arrangement between the respondent and the Prudential Life Insurance Company of Newark, N. J., to save the former harmless from any loss that might occur to it in case of the death of the complainant, Theodore M. Krumseig, during the term covered by the mortgage. It was also alleged that the defendant company had not complied with the laws of the state of Minnesota gov. erning life insurance companies, and that the contract was therefore void. The bill prayed that the mortgage be canceled of record and the remaining notes should be delivered up to them.

The answer denied that the contract was usurious, and alleged that the sum of $1.970. received by complainants, with the legal in [355] terest thereon and the cost of the guaranty of defendant to cancel the loan in case of the death of Theodore M. Krumseig during the continuance of the contract, constituted *a full and ample consideration for the notes and mortgage in question, and that the same was so understood and agreed to by complainants at the time of the execution of the contract.

The circuit court did not consider it necessary to pass upon the question whether the contract was one of life insurance, and hence void, for the admitted fact that the defendant company had not complied with the laws of Minnesota respecting life insurance companies; but regarded the contract as one for the security and payment of borrowed money, and, under the facts, as usurious and void under the statute of Minnesota; and granted the relief prayed for in the bill. 71 Fed. Rep. 350.

The circuit court of appeals affirmed the decree of the circuit court. Two of the judges concurred in holding that the contract was usurious, and that the complainants were therefore entitled to the relief prayed for. One of the two judges so holding construed the contract as one of life insurance, and hence also void under the Minnesota laws. The third judge, while apparently concurring in the view that the contract was usurious, thought that the complainants were not entitled to a remedy for a reason which we shall presently consider. 40 U. S. App. 620.

Usury is, of course, merely a statutory offense, and Federal courts in dealing with such a question must look to the laws of the state where the transaction took place, and follow the construction put upon such laws by the state courts. De Wolf v. Johnson, 10 Wheat. 367 [6: 343]; Scudder v. Union National Bank, 91 U. S. 406 [23: 245].

Section 2212, General Statutes of Minnesota of 1894, provides that upon the loan of

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